6—Cold Mountain Cold Rivers Complaint
Appended to the EA as Appendix A is the Biological Assessment (BA) wherein the
USFS’s assessment of the effects of the bison capture facility and associated hazing activities on
wildlife, including bald eagles, is set forth. The BA defines the Horse Butte Area as:
The area managed for cumulative effects of the proposed capture facility
. . .
contained within the boundary North of the Madison Arm of Hebgen Lake and
Cougar Creek, and west of YNP [Yellowstone National Park]. This area contains
approximately 15 square miles of private and public lands. The area is generally
described as the Horse Butte/Flats area.”
See Ex. 4, Appendix A, Biological Assessment, p. 21.
Also appended to the EA as Appendix B is the USFS’s Biological Evaluation (BE)
for the Horse Butte Bison Capture Facility—Site A2. The purpose of the BE is to analyze effects
on sensitive plants and wildlife. Forest Service Manual No. 2670.32 provides that part of the
NEPA decision-making process is to review and determine how proposed Forest Service programs
or activities on forest lands will affect any sensitive species. According to the BE, trumpeter
swans, black-backed woodpecker, boreal owls, lynx and wolverine are all listed as sensitive
species. See EA, Appendix B at p. 5. The Canada Lynx is now listed as a threatened species
pursuant to the Endangered Species Act.
Nowhere in the EA, or in the Appended BA or BE is an evaluation of the effects of
helicopter hazing on any threatened, endangered, or sensitive species analyzed. See EA, Appendix
22. The BE states that noise associated with the capture facility would include many things,
but does not ever mention helicopters. Id. The BE further states that “various means of
transportation would be used to haze bison including: motorized vehicles, snowmobiles,
motorcycles, ATV’s [sic] and/or horses.”Id. p. 3. Helicopters are notably absent from the list.
The only mention of helicopter hazing in the EA that Plaintiffs are aware is
prohibitive language, stating that “[h]elicopter activities shall NOT be permitted in Zone I.” See EA
Appendix IV, p. 32. Id. (emphasis in original). Further, Zone II hazing requirements state that
